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Videh Upadhyay

The Supreme Court has handed down an extraordinary decision with some extraordinary arguments directing the central government to execute the "river interlinking project". How could the Court which says "it can hardly take unto itself tasks of making of a policy decision or planning for the country on the need for acquisition and construction of river linking channels" then go on to actually take the very same policy decision and create an implementing mechanism that cannot open the policy decision itself? Should not the judgment be reviewed?

The environment minister has stated that prior clearance for projects will now be the norm. It is good that this principle has now been reaffirmed since this very ministry's established policy of giving "in-principle clearance" was illegal all along. While this change is welcome, it should also lead to punishment of those who started projects without prior clearance and have thus been in clear contravention of the laws.

The "judiciary versus executive" debate in the media has created more heat than light. Are the higher courts venturing into the domain of the legislature and increasingly entering the realm of policy? Or are they only appearing to do so even as they legitimately continue to have an activist approach in matters that need urgent judicial intervention? The challenge for the judiciary is to keep the popular faith in it going to provide the legitimacy to judicial activism.

The principles of the draft national environment policy see the environment as a 'subset' of the larger 'sets' of poverty and development, and address sustainable development from an essentially anthropocentric and utilitarian view. The silence of the draft on how customary rights of access to and use of environmental resources are to be integrated with formal policy, law and the rights framework is deafening.

The Supreme Court verdict in the case of the Dhimar fishermen emphasises the point that customs are only a source of law and they become such a source only when they are recorded in statutes or are recognised by courts. Besides, any argument on and for customary law has to be in the context of formal laws.

Despite the government's repeated assertions in recent years on the need for a decentralised, people-oriented and demand driven water management, these have not been converted into implementable solutions. While policy initiatives exist with regard to water user associations, watershed associations, and legal strategies are a much-needed prerequisite in order to evolve statisfactory working relationships between local bodies institutions and networks of formal and informal village groups engaged in water management.

As the long-standing Cauvery dispute shows, frequent resort to court mediation reflects a growing politicisation that relies more on judicial orders to redress grievances rather than taking recourse to forums especially established for bilateral discussions and negotiations. While the courts hold out the prospect for a speedier resolution, forums established for participatory discussions lack the necessary framework to be meaningful - a gap, which the draft national policy guidelines for water allocation tried unsuccessfully to fill.

The inadequacy of legislative drafting has created a regime of paper laws for panchayats. These laws do not respond to the spirit of the 73rd amendment, and even where they do, they cannot be implemented because enabling rules and orders have not been framed.

The role of the court as interpreter of laws and a reconciler of conflicting interests assumes greater significance in the context of the large legal space that has become available through the creative interpretation of provisions by the courts. The occasional reverses in the courts should not blur the larger picture of the expanding legal space, and the due recognition of the elasticity in existing legal provisions and the legal frame to enable interpretations consistent with fair play, equity and justice. A systemic departure and even a rupture from the existing regulatory regime may not be the only solution to the many intractable problems.

The expansion of judicial powers in recent years has been prompted by an activist interpretation of the Constitution in the context of a growing perception of the failure of the executive. A review of the stands taken by the higher courts on cases relating to infrastructure projects on the one hand, and to environmental protection on the other, and an assessment of their implications for changing scope of judicial power throws up interesting issues.

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